April 25, 2007

Rove Investigation: Shiny Object or Historical Novelty

by emptywheel

While I was in WiFi blackout yesterday, the LAT reported that the Office of Professional Responsibility would conduct a broad investigation into Karl Rove:

[T]he Office of Special Counsel is preparing to jump into one of the most
sensitive and potentially explosive issues in Washington, launching a
broad investigation into key elements of the White House political
operations that for more than six years have been headed by chief
strategist Karl Rove.

The new investigation, which will examine the firing of at least one
U.S. attorney, missing White House e-mails, and White House efforts to
keep presidential appointees attuned to Republican political
priorities, could create a substantial new problem for the Bush White
House.

First, the inquiry comes from inside the administration, not from
Democrats in Congress. Second, unlike the splintered inquiries being
pressed on Capitol Hill, it is expected to be a unified investigation
covering many facets of the political operation in which Rove played a
leading part.

[snip]

The 106-person Office of Special Counsel has never conducted such a
broad and high-profile inquiry in its history. One of its primary
missions has been to enforce the Hatch Act, a law enacted in 1939 to
preserve the integrity of the civil service.

There has been a good deal of justified skepticism about the investigation. Here's Howie's take and here's Michael Froomkin's. This is an officer that has dismissed many of its cases out of hand and--most importantly for this case--retaliated against its own whistleblowers.

Tom Hamburger, the author of the first report and a very good reporter, is aware of the skepticism. He's got an article today noting reasons for the skepticism. Though even that--particularly the quotes from OSC spokesperson James Mitchell--makes me even more suspicious:

A spokesman for the Office of Special Counsel, communications director
James Mitchell, waved away the complaints, saying agency staffers have
already begun to form an internal task force, led in part by career
staff, to probe three broad areas of activity involving the White House
and senior advisor Karl Rove.

That led "in part" by career staff, in an office accused of firing its own toughest investigators? Doesn't give me a lot of confidence in the investigation.

Me, I think the best cause for suspicion comes from Bloch himself:

The growing controversy inspired him to act, Bloch said.

"We are acting with dispatch and trying to deal with this because
people are concerned about it … and it is not a subject that should be
left to endless speculation," he said.

Uh huh. Or DOJ could just hand over the documentation behind this.

Beyond the question of whether this is an intended whitewash, I'm at least as interested in how they intend to whitewash. In the first Hamburger article (before he started referring questions to his spokesperson), Scott Bloch said explained that this "new" investigation came out of two pre-existing investigations.

Bloch said the new investigation grew from two narrower inquiries his staff had begun in recent weeks.

The two investigations, we know, are the Lurita Doan-related investigation into the use of the RNC server to plan partisan events on government property (a violation of the Hatch Act that normally falls under OSC purview) and David Iglesias' request for an investigation into whether he was fired because he was an "absentee landlord" due to Naval Reserve duties. His complaint was originally reported as an alleged violation of the Uniformed Services Employment and Re-Employment Rights Act, also something that normally falls under OSC purview. But in his Hardball appearance yesterday, Iglesias gave a different basis for complaint--the Hatch Act:

IGLESIAS: It could have started the ball rolling, yes. It’s is
something I filed back on April 3 of this year…based on, you know,
Special Counsel having powers to investigate where evidence goes. I
actually filed a Hatch Act complaint against Gonzales, McNulty, Sampson
and Goodling and they’re already getting documents from the Justice
Department and possibly from the White House.

[snip]

MATTHEWS: What law do you believe [Rove] broke?

IGLESIAS: He could have violated the Hatch Act by putting undue
pressure on the Justice Department to fire me and my colleagues.

MATTHEWS: Do you have any evidence that Karl Rove had a hand in your dumping, your firing?

IGLESIAS: There are some emails — there is some evidence. It is
circumstantial now. I believe if OSC digs in, they can get direct
evidence.

That is, Iglesias' public explanation about the basis for complaint appears to have changed, away from USERRA to a second Hatch Act complaint. That's a pretty aggressive complaint on Iglesias' part, not least because he doesn't state (at least not in this excerpt) the underlying logic--his investigations or lack thereof--were the real reason for his firing.

But I think there's something else going on, something that appears to extend outside the realm of OSC's normal mandate. The description is so novel, the original article says, because of it's scope. Rather than the Iglesias complaint and the Doan-related complaint, this is a general investigation. And this investigation includes within its scope the missing emails:

The new investigation, which will examine the firing of at least one
U.S. attorney, missing White House e-mails, and White House efforts to
keep presidential appointees attuned to Republican political
priorities,

That is, in addition to the two complaints actually brought to the office, OSC has decided to investigate the missing emails, as well. Now, IANAL (though I play one on some blogs), but I can't for the life of me figure out how the missing use of emails--as distinct from the use of emails to hide violations of the Hatch Act--falls under the OSC's mandate. By investigating the missing emails through the OSC, you turn it into a strict assessment of how that email system involves Hatch Act violations (such as the use of government resources to host partisan meetings), and ignore the use of the RNC emails as a way to commit large scale bribery. And consider the difference between going to jail for an obstruction conviction and getting fired for a Hatch Act violation.

In other words, I'm guessing part of the game here is precisely the scope. By treating these discrete complaints as one larger investigation, Bloch has managed to pull in perhaps the most dangerous aspect of all this, the RNC emails, and put them into an investigation with no consequences.

Even if his office does carry out a fair investigation, which I doubt.

Comments

Isn't the old addage that if you don't want to address something then have a committee look at it. This would seem like another case like the internal OPR / IG Justice department investigation. More smoke and mirrors and no comments about ongoing investigations.

These guys are very good at this. January 2009 isn't that far off.

In this chess match, the junta seems to a lot of pieces and is not playing with a blind fold on.

I haven't read much of anything that seems to indicate that Bloch will do diddly. He has focused on the New Mexico stuff but today the Wall Street Journal has the article on delays with the Renzi investigation due to delays from DoJ for a year before the election. This just adds to the pile of crap that is covering Gonzo. With the Waxman-Conyers-Leahy posse riding fast the DoJ mafia is going to be running for the hills.

And it got me thinking. The inclusion of the RNC e-mails into a nearly meaningless executive branch investigation -- as opposed to the congressional one -- would allow the executive branch to get their hands on the e-mails first before Congress is able to get them from the RNC.

That would give them a chance to slow down the congressional investigation. They can say that the executive branch investigation should take priority over the congressional one and obtain the e-mails first. Then they can release the e-mails in drips, holding onto the more damaging e-mails for as long as they can, like they have done with the US Attorney scandal.

They are going to get the evidence from the white house AND the RNC, and they are going to use this fake investigation the same way they used the fake investigations of Abu Graib - that is, they are going to run out the clock by refusing to release "evidence related to an important internal investigation", and use the very presence of the investigation to justify (and allow their troubled republican friends to justify) calls for delay. I can hear it now: "Let us let the investigation run it's course, and then we will have all the answers"

This is a little more interesting than the Wilson-Plame-Rove affair. I am not sure it has any more legs though it could.

excerpts from Iglesias above on Rove---

"could have violated the Hatch Act by putting undue pressure on Justice Dept"

"some emails, some evidence it is circumstantial now I believe if OCS digs in, they can get direct evidence"

Is this Wilson again, meaning strictly political, or is it attorney payback?

The main thing I see here is the supposedly wronged person sees some circumstantial evidence, but he is an attorney, so it has more credence, or why would he go out on limb?

Except there could be a Democratic Administration next term, and it could mean a job for Iglesias if he makes noise. It will be appreciated I am sure.

"Circumstantial" along with Rove could explain why the honey bees are dying, and what is happening to Britney Spears. Some have the whole world revolving around Rove, and I believe to their own detriment, because it means they don't look at their own actions while blaming everything on Rove and diverting their energies to him.

george is trying to move the RNC emails back in to whitehouse jurisdiction, so he has the OSC subpeona the emails, and then tries to keep the emails under wraps in the OSC office under Executive Privilige

the fuckup occurs in the jurisdiction of the OSC

the OSC is remedial in nature, not prosecutorial

the "remedy" to the problem is for the OSC to release the emails to a prosecutorial office for criminal referal

george is trying to play a shell game with the rnc emails, and OSC was the best he could come up with

I wonder if they can use thins "investigation" as a method of allowing the justice department to refuse to confer immunity? The DOJ MUST sign off on immunity deals for them to be valid. What if the Cult of Bush trots out the idea that giving Goodling immunity would interfere with the OSC query? It would at least run out the clock whit it was being litigated.

I assume the OSC can only investigate matters within its jurisdiction, as defined by various statutes. To the extent missing e-mails are relevant to those jurisdictional issues, the OSC should, by law, go after them.

You point out the same missing e-mails could be relevant to other violations that are outside the OSC jurisdiction -- but the fact OSC wants them for one reason does not legally preclude them from being sought/used in another investigation. I don't know any legal requirement that would require exclusivity here.

The concern is that the WH is manipulating everything, and the OSC will be used to hide from other investigations. But of course, the WH has every incentive to hide whether or not there is an OSC investigation. I don't see how the OSC investigation becomes a legally valid reason for refusing to cooperate in the other matters. Not that "legally valid" is relevant to the WH, but I think we need to separate the legal arguments from the diversions.

One question: how would the OSC's taking up the whole thing, including the missing emails, serve to derail or discourage other investigations? Would this investigation preclude another agency pursuing its own investigation, say of the missing emails just as such, and not necessarily strictly in terms of potential Hatch Act violation?

(though I play one on some blogs)

An allusion to the funny fact that for some unknown reason Maguire seems intent on referring to you as a lawyer?

Jodi - Circumstantial evidence is still evidence, as distinct from speculation without any basis other than the wishful thoughts of the speculator, such as this:

there could be a Democratic Administration next term, and it could mean a job for Iglesias if he makes noise. It will be appreciated I am sure.

Scarecrow - they don't NEED it to be legally valid, they need a VERY thin crust of bogus reasonableness. They can refuse to provide evidence for any reason they think they can pass time with, and historical evidence shows clearly that if they give the bobblehead republicans in congress that thin crust of bogus reasonableness, they will stand on it, wave a few flags, and stonewall.

These are they guys who are pretending there is some basis in law to let the WH go througn RNC e-mails BEFORE they are provided as subpoenaed.

And I also do believe that they could contrive a reason that granting immunity to Goodling would interfere with another investigation and use that as a reason to refuse to sign off.

This just has to be a ploy to hamper the release of the WH and RNC emails to Congress since there will be "an ongoing investigation". No one with 2 brain cells synapsing could believe that Bloch really means to do anything substantive - his track record sucks already and he can't have just suddenly got religion.

Not going to happen, guys. They will try to spin this out till eternity or 2008 unless the Democrats stiffen their collective backbone and, hopefully with the help of the career people in DoJ who are probably as pissed as we all are, put these slimeballs' feet to the fire.

You-all are so smart, it's a pleasure to come here and read.
I hope we see Waxman & Company look into this "investigation" and ask the hard questions about Bloch and his track record at the OSC. Also, seems appropriate to reestablish "investigation rights", if you will, stating clearly that just because the OSC has established an investigation it doesn't at all put a congressional investigation on hold, nor remove congressional rights to evidence. I'd rather get this out front instead of in reaction. When I was reading the morning LA Times Tuesday, sipping my morning caffeine, I thought this just smells like Rove.

Suppose the Bloch investigation is intended to block congressional oversight...

Given that Bloch is himself being investigated a/c tpm muckraker, couldn't this backfire quite badly - eg if Bloch has to resign, couldn't the investigation end up in someone else's - less compliant - hands.

(further wrinkle - how wd a replacement for Bloch be selected? Presumably it is too low-level a post to require senate confirmation?)

How would Bloch' replacement be selected? There's an as yet undiscovered secret provision of the PATRIOT Act that allows AG to pick someone from Ave Maria High in the dead of night, without telling anyone. Just a guess.

Regardless of what DOJ says about immunity, it goes to a federal judge. One reason that the Watergate investigation went somewhere was Judge Sirica, who refused to back down to the Nixon White House, and doggedly kept at it. With the conservative stacking of the judiciary, who would this go to? Yet another reason why no more judges should be approved until the WH comes clean. Let Bush recess-appoint them and let them all leave at the end of the year.

I think the OSC investigation is to take possession of the servers, as someone suggested yesterday. Bury the evidence.

I think the standoff with Congress is going to slowly escalate, encompassing the budget and appointments. The narrative is going against Bush now (largely because of Iraq) and it will only get worse. I think the Dems think that at some point the weight of evidence against Bush (adding corruption to the last year and a half's revelations of incompetence) will topple him.

I can't see Bush leaving voluntarily, but I do feel that there is a growing backlash in the country itself, and that if there are a few more big bad things, it is possible that Bsuh/Cheney won't serve out ther full terms in office. Note I do not wish for big bad things, but I think they grow in likelihood because of Bush policies--such as attacks on the lightly protected forward operating bases in Iraq, or some natural or financial disaster we can't cope with because they are all mired in Iraq or saving their skin.

Here's how they are going to use the new "investigation" to block immunity for goodling: They will claim that her immunized testimony will compromise anything they find subsequent to it (citing the problems with the North and Poindexter prosecutions) and therefor DOJ will invoke a "delay" of some period of time (translation: Until the Rapture) so that any case the OSC may prepare will be free of the taint of immunized testimony. Nixon tried to do that to Dean, but then AG Kleindeinst (who defferred to Peterson of the criminal division) wouldnt go for it. Bush doesn't have that problem.

How would Bloch' replacement be selected? There's an as yet undiscovered secret provision of the PATRIOT Act that allows AG to pick someone from Ave Maria High in the dead of night, without telling anyone. Just a guess.

Huh. But Bloch's OSC gig is a department investigation, not a DOJ investigation, so it's not working with a prosecutor leading to an indictment, right? So how can an OSC investigation trump a congressional investigation? To this bear of little brain, it can't. AND, at no extra charge, if this is not a federal prosecutor working a case, how does this create a reason for a DOJ delay in immunity for Goodling? I'm not seeing it. Thoughts, anyone?

marksb - As far as I can tell, there is no legal basis for what I think they are going to try to do. All they are doing is imparting a vague cloud of reasonableness, to give the bobbleheads in congress a little cover, in a P.R. sense, for supporting them. If they can create enough fog and confusion about what is or is not legal, they can get away with it. They have been doing exactly that since the beginnings of this administration.